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TMI Blog2022 (9) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... , P.S. - Bhowanipore, Calcutta - 700025. That the opposite party no. 2 is a partnership firm duly registered under the Indian Partnership Act, 1932 having its office at 95, Netaji Subhas Road, Calcutta - 700001, and opposite party no. 3 was a partner of the said opposite party no. 2 firm and he was in-charge of and responsible for the conduct of the day-to-day business of the opposite party no. 2 firm. At the request made by the opposite party nos. 2 and 3 the appellant had duly sold and delivered diverse electric motors of the agreed specifications and at the agreed rate to the opposite party nos. 2 and 3. The opposite party nos. 2 and 3 had accepted the said goods without raising any objection thereto. Thereafter, the appellant raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te party nos. 2 and 3 nos. 1 and 2 within 15 days from the date of receipt of the said notice. The said notice was duly received by the opposite party nos. 2 and 3 on 03.07.1999. By a letter dated 12.07.1999 the opposite party nos. 2 and 3 had requested the Advocates for the appellant to allow seven days' time to pay the said amount, but has failed and neglected to do so. Inspite of the receipt of the said notice the opposite party nos. 2 and 3 have failed and/or neglected to pay the said cheque amount of Rs.42,472.80/- and Rs.8,000/- or any part or portion thereof to your appellant. The accused parties pleaded not guilty under Section 251 Cr.P.C. and claimed for trial. The matter was fixed for evidence before the learned Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Amicus Curiae Ms. Rita Dutta, Advocate that the learned Magistrate erroneously acquitted the accused persons under Section 256 of the Code of Criminal Procedure and that it has caused serious prejudice to the appellant. Learned Magistrate also did not apply his judicial discretion and record findings justifying dismissal of the case and acquittal of the accused persons under Section 256 of the Code and as such the order of acquittal dated 7th September, 2001 is liable to be set aside. Learned Advocate from the State panel, Ms. Pushpita Saha appearing for all the opposite parties submits that the order under appeal is in accordance with law and that the complainant's conduct before the Trial Court and the appellant's/complainant's condu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) the provisions of Sub-section (1) shall, so far as may be, apply also to cases where the non appearance of the complainant is due to his death." It has been held in several decision of this Court that while acquitting an accused under Section 256 of the Code of Criminal Procedure, the Court must apply its judicial discretion and record the findings justifying dismissal of the case. It has been held that the Magistrate cannot pass such an order merely due to non-appearance of the complainant without forming judicial opinion. Section 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stifying dismissal of the case. The case was dismissed because the complainant failed to submit any application showing cause of his absence on the previous dates. Absence of judicial discretion is apparent on the face of the record, because the learned Magistrate did not assign any reason in support of the requirement that it is not proper to adjourn the hearing of the case to some other day and the Court thus set aside the impugned order of acquittal passed by the Magistrate. The facts and circumstances of the present case is not similar to the said case in which the findings as above has been recorded by the Court. In the present case the learned Magistrate had given opportunity on three occasions but the complainant had failed to appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly lays down that if the complainant does not appear, the learned Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. Conclusion Thus the said provision of Section 256 of the Code of Criminal Procedure clearly imposes a duty upon the Magistrate to proceed with the provisions of the said Section leading to acquittal of the accused if the complainant is found absent. It has been specifically provided in the said Section that unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. In the present case learned Magistrate on three occasions thought it proper to adjourn the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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